The Massachusetts Supreme Judicial Court holds oral arguments in appellate cases during the first week of each month from September to May. WGBH Morning Edition Host Joe Mathieu spoke with Northeastern University law professor and WGBH legal analyst Daniel Medwed to learn more about some of the cases up for consideration. The transcript below has been edited for clarity.
Joe Mathieu: What are the most interesting cases on the calendar for this month?
Daniel Medwed: Well, the court has a number of intriguing cases on the docket, as usual. One of them involves professional liability insurance. I know that's really a sexy topic, but it actually is quite important. Specifically, a provision known as a "consent to settle" provision for doctors, lawyers and engineers. The idea behind this is that a doctor or a lawyer has to agree in order for an insurance company to settle a malpractice claim. In this case, a plaintiff was allegedly aggrieved by a structural engineer who refused to agree to an insurance settlement. The idea is that this might clash with another Massachusetts law, known as 176 D, which requires Massachusetts insurance companies to promptly, fairly and equitably settle their claims. So it's a very technical issue about whether consent to settle features are legitimate, but it has huge ramifications.
Mathieu: What are the ramifications?
Medwed: Well, on the one hand, if doctors, lawyers and other professionals had no say in whether or not they could settle malpractice claims, then essentially they'd be subject to the whims of insurance companies. And the insurance companies, of course, might not have the reputational interests of their clients at the forefront of their decision-making calculus. On the other hand, sometimes there might be people in certain circumstances who are injured by malpractice [and] might not have the resources to go to trial who could be harmed by these consent to settle provisions when the professionals — say, a lawyer — refuses to agree to the settlement.
Mathieu: So how do you think this should turn out?
Medwed: Well, to be fair, before becoming an academic I was a lawyer, and I had professional liability insurance. So perhaps not surprisingly, I'm in favor of these consent to settle provisions, and here's why. First, as a normative matter, I think professionals should have some say in how these cases are resolved. After all, their reputation is on the line. Some folks might want to settle them quickly and quietly, others might want to proceed to trial to clear their names. Second, these consent to settle provisions are not ironclad, automatic features of every policy. You have to bargain for them. You have to pay for them. So some professionals might not want them. Others might. Let's have a little bit of freedom to contract here and keep it as is.
Mathieu: You referred to some other significant cases we should look at. What are they?
Medwed: [There's] a fascinating case involving assisted living retirement facilities and the state security deposit law. That law was passed back in 1969 to protect tenants, and it's a perfect time for early September to talk about landlord tenant issues here in Boston. The idea is that it caps, or limits, the security deposit that you can be required to turn over in order to get an apartment. Assisted living retirement facilities are not subject to this law. As a consequence, they tend to charge huge upfront "community fees" to potential inhabitants, regardless of whether those folks are going to stay for a month or for a longer period.
Mathieu: What are the arguments on both sides?
Medwed: Well, from the perspective of the assisted living retirement industry, the argument is based on the letter of the law. They are not residential landlords, which is what is covered by the security deposit law, and therefore they think they should be exempt. They're also citing financial hardship. If they were limited by the security deposit law, they might not have the resources [or] the funds to provide this very costly work. On the other hand, the advocates for consumers here are basically invoking the spirit of the law. This law was designed to protect vulnerable populations from predatory landlords. Here we have a situation where there's an elderly population that's growing in Massachusetts that is quite economically and physically vulnerable, and perhaps the intent of the legislature was to encompass this type of population. We've got to stay tuned. It's gonna be an interesting case to watch unfold.
